The Introduction explores the basic outlines of various feminist legal theories, including liberal feminism, radical feminism, relational feminism, socialist feminism, critical race feminism and postmodern feminism. It takes up some of the major conflicts between these contrasting views as well as points of overlap and explores the ways in which each has influenced legal reform movements as well been influenced by them.
Sylvia A. Law
In its original eighteenth-century form, liberal democratic theory did not recognize the full humanity or citizenship of either women or people of color. Nonetheless, women have mobilized liberal values and tools to build an increasingly feminist world. This chapter traces two centuries of accomplishment and failure. The chapter begins by describing liberal feminism and tracing the connections between classic liberalism and feminism in the United States from their roots in the eighteenth century to the present day. It explores the methodologies of liberal feminism, including legal reform, scholarship, cultural and societal changes, and grassroots organization. It then examines three challenges confronting liberal feminism in the twenty-first century: women’s ongoing lack of reproductive justice, pervasive sexual harassment and acute disparity in the distribution of income and opportunity. It concludes that liberal rights are essential in constructing a just society, but not by themselves sufficient to assure human flourishing and solidarity.
This chapter discusses Catharine A. MacKinnon’s theory of sex equality, its application as well as major strands of criticism. Beginning with a radical critique of liberal legalism, feminism and Marxism, MacKinnon conceived a hierarchy-centered theory of substantive equality, shifting the paradigm of equality thinking from questions of sameness and difference to the power structure of dominance and subordination. Drawing on feminist consciousness raising as method, her theory sees gender as an inequality and sexuality as the linchpin of gender inequality. It is also an engaged theory producing sex equality laws to address women’s sexual violations: sexual harassment as a legal injury and a form of sex discrimination; a harm-based civil-rights approach to pornography; an asymmetrical approach to the abolition of prostitution; and an inequality approach to rape as a gender-based crime. Against challenges from anti-essentialist and sex-positive critiques, MacKinnon’s theory embraces intersectionality as a method and pursues equality by resisting sexual oppression.
This chapter argues that feminist legal scholars should both construct and criticize legal ideals by first articulating a conception of humanity, or the human being, that law ought to serve. That conception, in turn, should center not only individual but also relational needs, vulnerabilities and potentialities. Women have done more of the world’s caregiving than have men, are disproportionately subject to the risk of sexual assault and experience the risks of both wanted and unwelcome pregnancy and maternity. Law should protect against these relational risks, and its ideals should reflect these differentiating experiences and modes of being. Currently it does neither. An over-reliance by feminists and others on formal equality and an ‘ethic of consent’ by which all consensual transactions, including sexual and reproductive transactions, are treated as moral by virtue of their consensuality has led to reliance on a conception of humanity that continues to disserve – because it does not recognize – women’s lives and interests.
Martha Albertson Fineman
My work over the past several decades has grappled with the limitations of equality. This struggle has resulted in the development of a legal paradigm that brings vulnerability and dependency, as well as social institutions and relationships, together into an analysis of state responsibility that goes well beyond concern with formal equality and impermissible discrimination.
Cynthia Grant Bowman
This chapter argues that a significant strand of feminist theory – socialist feminism – has largely been ignored by feminist jurisprudence in the US and explores the potential of recapturing its insights. It first describes the most important theoretical contributions by feminist socialist authors in the 1970s and 1980s: the theory of capitalist patriarchy, dual systems theory, an analysis of the role of housework, a class analysis of women’s status, a race and identity politics approach, perspective theory, alienation theory and an analysis of the international division of labor by sex. The chapter then explores how each of these arguments could supplement our current feminist legal analysis as well as clarify our understanding of modern legal feminism’s profound limitations. It argues that attentiveness to feminist socialism can help twenty-first-century feminist legal theorists and activists design legal projects and reforms on which to focus in order to make progress toward genuine equality.
Dorothy E. Roberts
In the last 50 years, feminists of color have developed an intersectional analysis of women’s subordination known as critical race feminism, which takes into account the multiple, interlocking systems of oppression that affect women’s lives and social status in ways typically overlooked by dominant feminist jurisprudence. They have also followed a long legacy of resistance against combined race- and gender-based oppression by proposing new intersectional frameworks for dismantling unjust hierarchies, systems and institutions. Critical race feminists have thereby transformed feminist legal theory, making it more relevant to the experiences of all women and better able to effectively challenge varying forms of women’s subordination. This chapter explores the development of critical race feminism and intersectionality and their continued importance in legal and social theories of inequality as well as in activist struggles.
Laura A. Rosenbury
How does law participate in the construction of gender? How should law participate in the construction of gender? Who wins and who loses? These are the questions that postmodern feminist legal theory urges feminists to embrace. This chapter sets forth the affirmative contributions of an approach to feminist legal theory rooted in analyses of the construction of gender, law and feminist law reform. The chapter highlights the descriptive and normative insights of postmodern feminist legal theory, including possibilities for developing new understandings of gender while never escaping gender itself. The chapter concludes by analyzing how postmodern feminist legal theory might inform feminist law reform, including interventions seeking to eliminate workplace discrimination and sexual violence in the United States.
Nan D. Hunter
This chapter analyzes feminist theories regarding sexuality as they have shaped and been shaped by the field of law. Multiple schools of feminist thought have developed since the 1970s, including those founded on principles of liberal equality norms, the centrality of male/female difference, sexual freedom and intersectionality. Each developed in tandem with politics on the ground. Especially with regard to sexual harassment claims and the definition of consent, the praxis of lawyering has both incorporated central feminist arguments and occluded much of the theoretical contestation and critique underlying their construction. How to define and analyze the relationship between sexuality and gender remains in dispute, all the more so as many scholars have endorsed the premise that feminism alone is inadequate to the task and that an independent theory of sexuality is necessary. The energy of transgender activism and the #MeToo insurgency promises that this will remain a vibrant field.
For half a century, feminist legal scholars and activists have worked to reconstruct the retrograde foundations of rape law. In place of chastity protection, I argue that sexual agency underpins the modern law of rape. I begin by describing the construct of sexual agency, emphasizing how feminist insights have enriched the familiar ideal of autonomy in ways that bear directly on sexual violence. I then apply the theory of sexual agency to three areas of relatively successful law reform efforts – substantive, evidentiary and procedural. I also consider the limits of rape law’s progress, again by reference to sexual agency. The agency frame recasts how a set of necessary reforms has fallen short of its intended target. I consider one final challenge to women’s agency that has become increasingly salient in the current #MeToo moment – acquiesced-to (unwanted consensual) sex. I conclude that, while the promise of female sexual agency remains unfulfilled, it should endure as the desideratum of reform.